Tag: Personal Injury

Sunset in Albufera of Valencia, Valencia, Spain.

Darkness and Mediation

{3 minutes to read} Someone once asked me what the key was to resolving a case in mediation. My answer was simple: “It starts getting dark out.” Funny perhaps, but truth is implicit in all humor. One of those truths is that almost all people participating in a mediation want it to succeed. Including those who say on the first phone call, “You know, there’s no way this case can settle.”

A related metaphor to the above is that mediation usually sheds light on things, though it doesn’t happen all at once. Facts emerge, positions get revealed, as do the reasons for those positions, and positions morph over time. Settlements are reached for all sorts of reasons, not the least of which is that everyone just wants to get it over with. Sometimes that happens in a day, several days, weeks, or even months. The desire to get a conflict over with and move on can often be quite a beneficial stimulus to resolving a case. And “when it gets dark out,” people say all sorts of things they couldn’t or wouldn’t have said at the start.

Who Needs to be There: Personal Injury

{4 minutes to read} As my last blog took all the mystery out of the still almost-new AI phenomenon, we now return to the issue of who needs to be present at a mediation. I have previously addressed this issue regarding construction and divorce cases. The obvious answer to the question of who needs to be present at a mediation would be the parties however, that is not always the case. This is particularly true in personal injury matters where sometimes neither the plaintiff nor the defendant is present.

Since motor vehicle accidents are the most typical personal injury cases, I’ll use those as the basic example. Defendants in personal injury cases are often represented by counsel hired by insurance companies. That attorney is always present, and now that so many mediations are done via Zoom, an insurance adjuster may also attend. The defendant driver? More often than not, he or she is not present, especially if that driver was already deposed. The Plaintiff’s attorney is at the mediation, and certainly the injured plaintiff, right? Maybe. But maybe not.

The Emotional Power of Apologies

{3 minutes to read} Personal injury cases come in all stripes, though common to many of them is that the plaintiff(s) and defendant(s) don’t know each other. But what about when they do? Leaving aside medical care provided in emergency rooms, patients typically know their doctors before an event that leads to claims of medical malpractice. Patients/plaintiffs often felt they were – quite literally – in good hands before the procedure.

Some of you may recall or know of a line made popular from the 1970 novel Love Story which goes, “Love means never having to say you’re sorry.” Popular doesn’t always mean dumb, but in this case the two were synonymous.

Two Game Changers in Mediation

{3 minutes to read} Two enormous “game changer” mediation moments came back-to-back recently. Let’s start first with the local news. On May 14^th, New York State’s Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks announced a systemwide initiative in which parties in civil cases will be referred to mediation as the first step in the litigation process.

This is a very big deal. While it won’t happen overnight, this will eventually establish New York as the nation’s leader in making mediation an essential component of dispute resolution in the courts. Hundreds of thousands of cases that previously would have cost gobs of money and taken years to resolve — with limited input from the actual parties — will now go to mediation and get resolved with direct input and participation from the parties, with far less financial and emotional cost.

Ouch! When can I Collect . . .

{3 minutes to read} So how long does a personal injury mediation take? You will probably find this surprising, but it depends.

Personal injury cases come in many, many different sizes. There are fender benders with bruises, class actions, medical malpractice cases (many different sizes there, too), “minor” injuries, major ones, in-between ones. And of course there are damages, which often determine the length of litigation and of a mediation.

Should Mediation Be Mandatory?

Jurisdictions throughout the country are increasingly establishing mandatory mediation programs. At first glance, “mandatory mediation” would seem to be an oxymoron to the mediation community where “self-determination” is a fundamental tenet of theory and practice, trumpeted for years as one of mediation’s highest goals.

Is forcing people into mediation contrary to a fundamental underpinning of the field and therefore doomed to failure? If it is, why are more and more jurisdictions adopting mandatory mediation programs? And, most importantly, does mandating mediation work?

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